In these Conditions:
“BUYER” means the person who submits a Business Application and/or who accepts a quotation of the Seller as set out in a SALES CONFIRMATION FORM for the sale of the Goods.
“CONTRACT” means the contract for the purchase and sale of the Goods which shall comprise of the SALES CONFIRMATION FORM and these Conditions.
“SALES CONFIRMATION FORM” means the Seller’s written form of confirmation of the Contract as adopted from time to time which includes without limit the Sales Confirmation and any Written Order which in each case is accepted by the Seller.
“GOODS” means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with this Contract.
“SELLER” means any Hobart Enterprise Limited group company as specified in the Business Application. In the event that the seller utilises a regional branch (as a separate entity in the region) as its representative, the branch is to be considered as an extension of the seller. The buyer accepts and carries out all obligations of this business application and attached Conditions of Sale as true and binding upon the buyer and the seller’s branch and by its legal effect shall be equal to this business application signed between the buyer and the seller’s branch.
“WRITING” and any similar expression, includes facsimile transmission, electronic mail. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
2. Basis of the sale
The Seller shall sell and the Buyer shall purchase the Goods in accordance with any Written quotation of the Seller which is accepted by the Buyer, or any Written order of the Buyer which is accepted by the Seller, or any oral agreement between the Buyer and Seller and which is in each case confirmed by the Buyer by signing a SALES CONFIRMATION, subject in each case to these Conditions, which shall govern the Contract and shall override and exclude any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, stipulated, incorporated, or referred to by the Buyer. All orders hereafter given by the Buyers shall be deemed to be subject to these Conditions and acceptance of the Goods by the Buyer shall be conclusive evidence before any Court of Law or arbitrator that the Contract is subject to these Conditions.
No variation to the Contract shall be binding unless agreed in Writing between an authorised representative of the Buyer and an authorised representative of the Seller.
The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing under the signature of an authorised representative of the Seller. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed but nothing in these Conditions affects the liability of either party for fraudulent misrepresentation.
Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing under the signature of an authorised representative of the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
3. Orders and specifications
The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order whether written or oral (including any applicable specification) submitted by the Buyer, and for giving the Seller on or before or with the order all necessary information relating to the Goods to enable the Seller to execute the order n accordance with its terms and to notify the Seller of any special legal or other requirements or expenses which will be involved in execution of the order
The Seller reserves the right to make any changes in the specification of the Goods which are required to conform to any applicable safety or other statutory requirements or any EU requirements or which do not materially affect their quality or performance.
No order may be cancelled by the Buyer except with the agreement in Writing of an authorised representative of the Seller
4. Price of the goods
The price of the Goods shall be the Seller’s quoted price. All prices are valid for immediate acceptance only unless otherwise stated in writing by the Seller. The currency of the quoted price and the currency in which the Seller’s invoices shall be paid are as specified on the SALES CONFIRMATION FORM.
The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, alteration of duties), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate instructions
The Buyer shall pay the price of the Goods according to the payment terms agreed on the business application, unless amended in writing by an authorised representative of the seller.
If no credit facility is in place the Buyer shall pay according to the SALES CONFIRMATION agreed by the Buyer and the Seller.
Unless otherwise stated on the SALES CONFIRMATION FORM, the price is exclusive of any applicable value added tax or sales tax, custom duty, impost, import and export duties or other tax of a like nature applicable under any jurisdiction or other cost of complying with government regulations which the Buyer shall be additionally liable to pay to the Seller.
Unless otherwise stated on the Seller’s SALES CONFIRMATION FORM the price for the Goods shall include the Seller’s cost of packing including packing materials.
5. Terms of payment
Unless otherwise expressly stated on the SALES CONFIRMATION FORM, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in either of which events the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
The Buyer shall not be entitled to any discount of the price of the Goods.
If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is specified in the SALES CONFIRMATION FORM or is agreed by the Seller, by the Seller delivering the Goods to that place. Where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Seller shall be under no obligation under section 32(2) of the Sale of Goods Act 1979.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused nor shall the Buyer be entitled to refuse to accept the Goods because of late delivery.
6.3 Time for delivery shall not be of the essence of the Contract unless previously agreed in Writing under the signature of an authorised representative of the Seller. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer or in divisible instalments.
6.4 The Buyer and the Seller agree that the Seller may deliver up to five per cent more or less than the quantity of Goods the subject of the Contract without any liability whatsoever to the Buyer save that the invoiced amount shall be adjusted accordingly.
6.5 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.6 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and if the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of purchasing similar goods to replace those not delivered over the price of the Goods.
6.7 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.7.1 Store the Goods (but shall have no liability in respect of any loss or damage to the Goods) until actual delivery and charge the Buyer for the reasonable costs and expenses (including insurance) of storage; or
6.7.2 Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage insurance and selling costs and expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7. Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery to the station, port or address specified in the SALES CONFIRMATION FORM as the place of delivery whether or not the Buyer in fact takes delivery of the Goods; or
7.1.2 in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection.
7.2 The Buyer acknowledges that before entering into an agreement for the purchase of the Goods from the Seller he has expressly represented and warranted that he is not insolvent and has not committed any act of bankruptcy, or being a company with limited liability, knows of no circumstances which would entitle any debenture holder or secured creditor to appoint a receiver, and knows of no circumstances which have or may lead to the presentation of any petition for winding up of the buyer or an application for the appointment of an administrator or the exercise of any other rights over or against the Buyer’s assets including but not limited to the appointment of a receiver or administrative receiver.
7.3 Retention of title
7.3.1 The Contract shall constitute an agreement to sell the Goods and not a sale of them and no title to the Goods shall pass to the Buyer by reason of delivery or acceptance of the same. The Seller shall remain the sole and absolute owner of the Goods until such a time as the price of the Goods and all other amounts due in relation to goods agreed to be sold by the Seller to the Buyer for which payment is then due have been paid in full by the Buyer to the Seller. Until such time the Buyer shall be the bailee of the Goods for the Seller and shall keep them properly stored on his premises, protected and insured and shall keep them separately from his own goods or those of any other person and in a manner which makes them readily identifiable as the Goods of the Seller.
7.3.2 The Buyer’s right to possession of the Goods shall cease at whichever is the earliest of the following dates:
a) On the expiration of the agreed period of credit, if any
b) On the occurrence of any of the events referred to in Clause 9.1 of these Conditions.
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, the Seller is hereby authorised to enter upon any premises of the Buyer where the Goods are stored and repossess the Goods.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for an indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
7.6 The Buyer hereby irrevocably appoints each of the Seller and any persons nominated in Writing by the Seller as Attorney of the Buyer with full power of substitution for the Buyer and in its name and on its behalf as its act and deed to execute sign seal and deliver or otherwise perfect any writing or do any act or thing for the purpose of entering upon any such premises as are referred to in clause 7.4 of these Conditions and repossessing the Goods. The Buyer shall ratify any act of such Attorney.
8. Warranties and liabilities
8.1 Subject to the conditions set out below the Seller warrants that the Goods are at the time of delivery in accordance with any specifications or samples provided to the Buyer or, in the absence of any specification or sample, are of a similar quality to similar goods supplied by the Seller.
8.2 The above warranty is given by the Seller subject to the following conditions:
8.2.1 The Seller shall be under no liability in respect of any defect in the Goods arising from any specification supplied by the Buyer or its agent;
8.2.2 the Seller shall be under no liability in respect of any defect arising from the Buyer’s wilful damage, negligence or failure to follow the Seller’s instructions if any (whether oral or in Writing) or from misuse of the Goods or during any unloading or carriage of the Goods by the Buyer or its agents;
8.2.3 The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods is not paid on the due date for payment;
8.2.4 The above warranty does not extend to parts, materials or equipment, if any, not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
8.3 Except as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification or sample shall (whether or not delivery is refused by the Buyer) be notified in Writing to the Seller within 7 days from the date of delivery or (where the defect or failure would not have been apparent on reasonable inspection and testing whether or not such inspection or testing has taken place) within 7 days after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.5 Except in respect of death or personal injury caused by the Seller’s negligence, or liability for defective products under the Consumer Protection Act 1987, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contact or at all) or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Conditions.
8.6 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
8.6.1 Act of God, explosion, flood, tempest, fire or accident;
8.6.2 War or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.6.3 Acts, restrictions, regulations, byelaws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority or other authority having any like power;
8.6.4 Import or export regulations or embargoes or exchange control regulations;
8.6.5 Strikes, lockouts or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.6.6 Difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.6.7 Power failure or breakdown in machinery;
8.7 The Buyer undertakes to use the Goods and to take all necessary steps including the obtaining of any relevant undertakings as to safety matters from and the giving of any relevant warnings to those to whom the Goods or any article comprising the Goods is supplied to ensure that others use the Goods in such manner as to be safe and without risk to the health of persons at work or at a place to which section 4 of the Health and Safety at Work Act 1974 applies. The Buyer acknowledges that it has received all relevant information as to the properties of the Goods in relation to the use for which they are to be or may be put and undertakes to indemnify the Seller against any loss, liability or expense arising under the Consumer Protection Act 1987 or the Health and Safety at Work Act 1974 or otherwise.
9. Insolvency of Buyer
9.1 This clause 9 applies if:
9.1.1 the Buyer makes a composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters administration or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or a moratorium comes into force in respect of the Buyer (within the meaning of the Insolvency Act 1986); or
9.1.2 An encumbrancer takes possession, or a receiver or administrative receiver is appointed, of any of the property or assets of the Buyer; or
9.1.3 The Buyer ceases, or threatens to cease, to carry on business; or
9.1.4 The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
9.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10. Export terms
10.1 Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions but, if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
10.2 Unless otherwise agreed in the SALES CONFIRMATION, the Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
10.3 Unless otherwise agreed in Writing the Seller shall be under no obligation to given notice under section 32(3) of the Sale of Gods Act 1979.
10.4 The Buyer shall be responsible for arranging for testing and/or inspection of the Goods, if required, before shipment. The Seller shall have no liability for any claim in respect of any defect in the tested and/or inspected Goods which would be apparent on any testing and/or inspection and such claim is made after shipment or in respect of any damage during transit.
10.5 The Buyer shall not offer the Goods for resale in any country notified by the Seller to the Buyer at or before the time the Buyer’s order is placed, or sell the Goods to any person if the Buyer knows or has reason to believe that that person intends to resell the Goods in any such country.
11. Data Protection
If the Buyer processes personal data (as defined by the Data Protection Act 1998) on behalf of the Seller, the Buyer will:
11.1 Only act on the instructions of the Seller in relation to the processing of such personal data;
11.2 Operate sufficient and appropriate technical and organisational measures to protect against unauthorised or unlawful processing of such personal data and against accidental loss or destruction of, or damage to such personal data;
11.3 Comply with all obligations imposed under the Data Protection Act 1998.
11.4 Provide evidence to the Seller on request of the technical and organisational measures the Buyer has taken to comply with its obligations under this clause; and
11.5 On the Seller’s request, and unless required by law to do otherwise, return such personal data to the Seller and destroy any copies of such data that the Buyer holds.
12.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
12.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.3 If any provision of these Conditions is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
12.4 Any dispute arising under or in connection with these Conditions or the sale of the Goods which is not subject to the jurisdiction of the County Court shall be referred to arbitration in London in accordance with the rules under the Arbitration Act 1996 or any statutory modification thereof.
12.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
12.6 The Contract shall be governed by the laws of England and Wales and each of the parties hereto submits to the nonexclusive jurisdiction of the English courts if the seller is Chemox Pound Limited. The Contract shall be governed by the laws of Ireland and each of the parties hereto submits to the nonexclusive jurisdiction of the Irish courts if the seller is AV Pound & Co Limited.